Filming a person engaged in a private act
In NSW, filming a person engaged in a private act, is a serious offence that carries a maximum penalty of a fine of 100 penalty units and/or imprisonment for two years. If the offence is committed in circumstances of aggravation, the maximum penalty increases to a term of imprisonment for five years.
In NSW, a court can impose any of the following penalties for this charge:-
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Fine
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence of Filming Person Engaged in Private Act:
The offence of ‘filming person engaged in private act’ is set out in section 91K of the Crimes Act 1900 and states:
General Offence – A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act:
- Without the consent of the person being filmed to being filmed for that purpose, and
- Knowing that the person being filmed does not consent to being filmed for that purpose,
is guilty of an offence.
The aggravated offence is contained in subsection (3) of section 91K, which states:-
Aggravated Offence – A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act:
- Without the consent of the person being filmed to being filmed for that purpose, and
- Knowing that the person being filmed does not consent to being filmed for that purpose,
Is guilty of an offence, and
- In circumstances of aggravation,
Is guilty of an offence, and
What Actions Might Constitute “Filming Person Engaged in Private Act”?
- For both the general and the aggravated offence, you can be charged with and convicted of the respective offence if the Prosecution can prove that you attempted to commit that offence.
- Subsection (4) defines “circumstances of aggravation” as circumstances in which:
- The person filmed is under 16 years of age; or
- You constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
- Where the section refers to “constructing or adapting the fabric of any building” for the purpose of facilitating the offence, the most common example of this is where someone creates a peephole in a door or wall to watch the person on the other side.
- It is important to remember that you can be convicted of an offence under this section if the person being filmed consented to being filmed for another purpose rather than for the purpose of your, or another person’s, sexual gratification or arousal.
- Section 91N defines what “engaged in a private act” means by providing four scenarios:-
- Being in a state of undress;
- Using the toilet, showering, bathing;
- Engaged in a sexual act of a kind not ordinarily done in public; or
- Engaged in any other like activity.
What the Police Must Prove?
To find you guilty of an offence of filming person engaged in private act, the Police must prove, beyond reasonable doubt, that you:-
- For the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification;
- Filmed a person;
- Whilst that person was engaged in a private act;
- That you did so without the consent of that person; and
- Knowing that that person did not consent to being filmed for that purpose.
To find you guilty of the aggravated offence under section 91K(3), the Police must prove the above beyond reasonable doubt and also prove, beyond reasonable doubt, that:-
- The person filmed was under 16 years of age; or
- You constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
What Court Will Deal With My Matter?
The general offence under section 91K(1) is a summary offence. That means that your matter must be dealt with to finality in the Local Court.
The aggravated offence, under section 91K(3) is a Table 1 Offence. That means that your matter will be dealt with to finality in the Local Court unless you or the Prosecution elect to have the matter finalised in the District Court. If the matter is dealt with in the District Court, this could give riser to harsher penalties.
Possible Defences to Filming Person Engaged in Private Act:
Common ways that you can defend the charge of filming person engaged in private act are if you can show:-
- The purpose of filming was not to obtain yourself, nor caused another person to obtain, sexual arousal or gratification,
- You had the consent of the person being filmed to be filmed for that purpose, or
- You genuinely believed you had the consent of the person being filmed for that purpose.
Types of penalties:
Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.
Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.